1 No. 06- 14 -00222- CR

IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT OF TEXAS

TEXARKANA

TAMMY KAY TAYLOR, Appellant

v. THE STATE OF TEXAS, Appellee

Appealed in Cause No. 1423993

8 th Judicial District Court of Hopkins County, Texas

APPELLEE ’S BRIEF ACCEPTED 06-14-00222-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/26/2015 2:05:46 PM DEBBIE AUTREY

CLERK2 By:/s/ Nicholas C. Harrison Nicholas C. Harrison Assistant District Attorney State Bar No 24062768 P.O. Box 882 Sulphur Springs, Texas 75483 (903) 885

- 06413 TABLE OF CONTENTS

TABLE OF CONTENTS 3 TABLE OF AUTHORITIES 4 SUMMARY OF THE ARGUMENT 5 ARGUMENT AND AUTHORITIES 5 STANDARD OF REVIEW 5 I. The trial cour t did not err in admitting an extraneous offense. 5 II. Any error in admitting the extraneous offense was harmless. 8 III. The trial court did not make a Hardesty inference finding. 9 IV. Even if the trial court made such a finding, it would not be error. 11 PRAYER FOR RELIEF 1 3 CERTIFICATE OF SERVICE 1 44 TABLE OF AUTHORITIES

Cases Guzman v. State , 955 S.W. 2 d 85 (Tex. Crim

. App. 1997 )

................................ ........... 5 Higginbotham v. State , 356 S.W. 3 d 584 ( T ex. App.

- Texarkana 2011 )

.................... 7 Johnson v. State , 967 S.W.2d 410 (Tex.Crim.App. 19 98 )

................................ ......... 8 Morales v. State, 32 S.W. 3 d 862 (Tex.Crim.App. 2000 )

................................ ........... 9 Hardesty v. State , 656 S.W.2d 73 (Tex.Crim.App. 19 83 )

................................ .......... 9 Pardee v. State , 2012 Tex. App. LEXIS 6823 (Tex. App.

- Texark ana 201 2 )

.......... 11 Jones v. State , 899 S.W.2d 25 (T ex.App.

- Tyler 1995 )

................................ .......... 11

Rules Texas Penal Code 31.03 (c) (1) ; ................................ ................................ .................. 6 T exas Rule of Evidence 404(b) ; ................................ ................................ ................ 7 T exas Rule of Appellate Procedure 44.2(b) ; ................................ ............................. 85 SUMMARY OF THE ARGUMENT

During the bench trial, t he court sitting as fact finder did not err in admitting testimony co ncerning an extraneous offense, since it was proven beyond a reasonable doubt. Even if it was error to admit the extraneous offense testimony, the error was harmless. The trial court did not make a Hardesty inference finding, but only considered the State’s arguments along with the evidence. Had the trial court made such a finding, it would not have been error anyway.

ARGUMENT AND AUTHORITIES Applicant pre sents two issues for review: (1) Whether it was harmful error for the trial court to admit testimony of an extraneous offense and (2) Whether the trial court committed harmful error by making a “ Hardesty inference ” finding.

STANDARD OF REVIEW Evidentiary rulings a re reviewed under an abuse of discretion standard.
Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997).

I. During the bench trial, the court sitting as fact finder did not err in admitting testimony concerning an extraneous offense, since it was proven beyo nd a reasonable doubt.6 During its case

- in

- chief, the State admitted testimony pursuant to Texas

Penal Code 31.03(c)(1). This provides that “evidence that the actor has previously participated in recent transactions other than, but similar to, that which th e prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty.” Specifically, the State called as a witness Mr. Rupinderjit Singh, the Appellant’s form er employer. (R.R. Vol. III, pg. 182

- 191). Mr. Singh testified that he owned a Family Mart convenience store in Hopkins County, Texas, and he hired Appellant as a cashier before promoting her to store manager. Appellant worked for him during August 2013, a nd she was the only person besides Mr.
S ingh with access to his office. Mr. Singh testified that Appellant knew that he would be out of town on August 27, 2013, and he had been gone for four or five days before that date. On August 27, at approximately 4 a .m. Appellant entered Mr. Singh’s office and stole approximately $4000 in cash. She then failed to report for her usual morning shift and stopped taking Mr. Singh’s phone calls. At no point prior to the theft had Appellant failed to return Mr. Singh’s call s. The State acknowledges that Mr. Singh was not physically present in the store during Appellant’s theft, as of course was her plan. T he admissibility of Mr. Singh’s testimony is based on a theft statute provision which operates much like7

Texas Rule of E vidence 404(b): the prior act is not admissible to prove character, but to prove intent and modus operandi. In both cases, Appellant became employ ed by U.S. citizens of South Asian descent: Mr. Singh in one case and Mr. and Mrs. Patel in another case. In both cases, Appellant worked herself into a position of trust and access. In both cases, Appellant waited until her employer was away for an extended period of time. In both cases, Appellant then committed a theft. And in both cases, Appellant suddenly shu t off all communication with her former employers. Appellant cites Higginbotham v. State , 356 S.W.3d 584 (Texarkana 2011, pet. Ref’d). In that case, a witness testified to an extraneous offense committed by the defendant. Unlike this case, appellant in Hig ginbotham objected at the time of trial on the basis that the State had not proven the offense beyond a reasonable doubt. Additionally, the Court described the witness’s statements as conclusory and inconsistent. In this case, Appellant did not object at t he time of the testimony. (R.R. Vol. III, pg. 182). Mr. Singh’s testimony was clear, unequivocal, and it comprehensively addressed each element of the offense of theft of property. The trial court, as fact finder, could have reasonably found that the State proved this extraneous offense beyond a reasonable doubt. Appellant complains that the trial court did not make an express fact finding on the theft from Mr.8

Singh. (Appellant’s Brief at 8). No such finding is required under Texas law, and Appellant cites no authority in support of that argument.

II. Even if it was error to admit the extraneous offense testimony, the
error was harmless. Even though the Court found the admission of the extraneous offense to be error in Higginbotham , it was determined to be harm less. Id at 592. Error in admitting evidence concerning extraneous offenses is reviewed under the standard
for non

- constitutional error requiring an appellate court to disregard a non

constitutional error that does not affect a criminal defendant’s substan tial rights. TEX.R.APP. 44.2(b). Reversible error has not occurred if the appellate court, after examining the record as a whole, “has a fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State , 967 S.W.2d, 41 0. (Tex. Crim. App. 1998). The Texas Court of Criminal Appeals has instructed: “In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence adm itted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The9

reviewing court might also consider the jury instruc tion given by the trial judge, the State’s theory and any defensive theories, closing arguments, and even voir dire, if material to appellant’s claim.” Morales v. State , 32 S.W.3d 862. ( Tex.Crim.App. 2000 )

. In this case, the court acted as fact finder, and thus all the concerns associated with misleading a jury are alleviated. Notably, Mr. Singh’s testimony consisted of 9 pages of the record out of 153 pages of the State’s case

- in

- chief and out of a 221 page record. (R.R. Vol. III pgs. 182

- 191). At no point during the State’s cl osing argument did it even mention the extraneous offense. In light of the overwhelming evidence of guilt, the admission of Mr. Singh’s testimony, if error,
was harmless.

III. The trial court did not make a Hardesty inference finding, but only considered the St ate’s arguments along with the evidence.

The Hardesty inference is a legal device which may be utilized by the State during theft prosecutions. Hardesty v. State , 656 S.W.2d 73 (Tex.Crim.App. 1983). Once the elements of the inference are established, a fac t finder may infer from those facts a defendant’s guilt of theft. The inference is not a presumption, and it may or may not be sufficient to sustain a conviction. If an actor is found in10

possession of recently stolen property and offers no reasonable expla nation for his or her possession at the time, a fact finder may infer that the actor stole it. Appellant complains that the trial court erred by making a Hardesty inference finding, and that the State failed to lay a proper predicate for the inference . The State acknowledges that it requested a Hardesty inference finding from the trial court, however, the trial court declined to make such a finding. Below is an excerpt from R.R. Vol. III, pgs. 191

- 192.

“ MR. HARRISON: Your Honor, State has no further witness es, no further exhibit evidence. We would

– at this time, if we could take up the issue of the Hardesty inference? (State rests). THE COURT: You’re excused, Mr. Singh. THE WITNESS: Thank you, sir. THE COURT: Did you provide this same

– both the case

– the H ardesty case and the section from the Texas Practice Guide

– Texas Practice Series regarding the Hardesty inference to Mr. Ferguson?
MR. HARRISON: I did, Your Honor. THE COURT: Now, you correct me if I’m wrong, but would this not just be part of your closi ng arguments?11 MR. HARRISON: Well, I believe it’s a legal device. I know that there’s no

jury here. It’s not a presumption. THE COURT: Right.

MR. HARRISON: But it is

– it’s an inference that the Court can find

–
THE COURT: Sure.

MR. HARRISON:

-- which I thi nk would help our case, but we could certainly just argue. That’s true. THE COURT: What I’m going to do is just kind of understand that that’s going to be part of the State’s argument in support of their burden of proof. And so the State has rested their c ase in chief. Mr. Ferguson?”

IV. Had the trial court made such a finding, it would not have been
error anyway. Even if the trial court had made a finding that the State laid a sufficient predicate to avail itself of the Hardesty inference, such a finding would not have been error. Appellant cites Pardee v. State , 2012 Tex. App. LEXIS 6823, (Tex. App.

– Texarkana 2012), which states “no inference of guilt can be raised where police found the stolen property in a place where others have an equal right and facilit y of access.”12 T o lay the predicate for the Hardesty inference, the State had to present

evidence that Appellant was found in possession of recently stolen property and offered no reasonable explanation for her possession at the time. Mrs. Wanda Henderson testified for the State. (R.R. Vol. III, pgs. 120

- 153 ). She stated that Appellant and Appellant’s husband arrived at Henderson’s place of residence to unload luggage and personal property. Appellant and her husband used a pickup truck and the process took two days. Mrs. Henderson testified that she observed Appellant and her husband carrying multiple, “nice” looking suitcases. (R.R. Vol. III, pg. 127). Mrs. Henderson asked Appellant where they got the suitcases, and Appellant said she got them from Goodwil l for $1.50 each. In court, Mrs. Henderson viewed photographs of stolen property seized from the residence and identified the suitcases in the photographs as the same ones Appellant and her husband were carrying. (State’s Exhibits 2

- 7). The Victim, Mr. Jit endra Patel, earlier viewed the same photographs and identified the suitcases as being the very same which were stolen from him. (R.R. Vol. III pgs. 49

- 54). The trial court, as fact finder, could have reasonably found that Appellant, either individually o r under the law of parties with her husband, was in possession of recently stolen suitcases and that when she was asked about it by Mrs.13

Henderson she gave an unreasonable explanation in the form of her $1.50 Goodwill story. Appellant’s argument that Mr. R on Hanson and Mrs. Wanda Henderson had an equal right of access to the room where the stolen property was eventually stored by Appellant misses the point. Mrs. Henderson testified that she saw Appellant and her husband with the stolen property physically i n their hands as they moved it into the house. Joint possession of stolen property by multiple defendants is not a bar to the Hardesty inference. Jones v. State , 899 S.W.2d 25. (Tex. App.

– Tyler 1995). In Jones , the court distinguishes between a case in w hich the stolen property was found, not on the accused’s person, but in a remote
location

– a common attic

– to which others might have had access. In Jones , however, the stolen property was found with him, in plain sight, though others

wer e present.
PRAYER FOR RELIEF The State req uests that this Court AFFIRM Appellant ’ s conviction by the trial

court. By:/s/ Nicholas C. Harrison Nicholas C. Harrison Assistant District Attorney State Bar No 24062768 P.O. Box 88214 Sulphur Springs, Tex as 75483 (903) 885

- 0641

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to counsel for Appellant, Wade Forsman , on this the 2 6 th day of February, 2015. By:/s/ Nicholas C. Harrison Nicholas C. Harrison Assistant District Attorney

CERTIFICATE OF WORD COUNT I certify that this document contains 1 , 8 29 words according to the counting tool in the program used to generate this document. By:/s/ Nicholas C. Harrison Nicholas C. Harrison Assistant District Attorney